A combined picture of President Uhuru Kenyatta and Nasa leader Raila Odinga.

analysis

Two elections in two months has not settled Kenya's political crisis. But the impasse is not really about who will sit in State House. It's a deeper question: it's about who owns Kenya - its citizens or a historically entrenched political elite.

Kenya went back to the polls on 26 October after the Supreme Court annulled the first attempt in August. Incumbent President Uhuru Kenyatta won easily after his main opponent, Raila Odinga, withdrew from the race alleging the inability of the Independent Electoral and Boundaries Commission to carry out a credible poll.

Some have proposed that the political crisis is nothing more than a dispute between two of Kenya's famously power-hungry politicians, each accusing the other of trying to vault into office by fraudulent means.

Others blame the ethnicisation of Kenya's politics and the deep tribal fault lines within Kenyan society. Still others maintain that the country's winner-take-all political system, which does not allow those rejected by voters a cushy and safe landing.

All these diagnoses fail to identify the central conflict that connects all these issues - the struggle to bend the country's post-colonial extractive state to the will of a new and progressive constitution.

It is a war that has been silently waged for at least 55 years.

In 1962, Kenyan representatives to the Lancaster Constitutional Conference agreed on a constitution broadly similar to the one the country finally adopted in 2010. It established a Bill of Rights. It created regional assemblies and local government in an effort to devolve power from the centre. It even had a Supreme Court.

Yet in less than a decade, it would be so mangled through amendments that in 1969 it was officially recognised as a different document.

Kenya's current attorney-general, Githu Muigai, noted way back in 1992 that the independence constitution was incompatible with the inherited authoritarian colonial administrative structure.

"Unhappily, instead of the latter being amended to fit the former, the former was altered to fit the latter, with the result that the constitution was effectively downgraded," Muigai wrote.

In short, under the ruling KANU party, the colonial state and its logic of extraction of resources from the many to enrich the few - initially British colonials, but now a similarly tiny African political elite - prevailed and undid the constitution.

What followed was an "eating" binge as politicians and senior officials and their families and friends grabbed whatever they could lay their hands on.

By the late 1980s, the looting and oppression sparked a reaction from citizen groups, media, and churchmen who pushed hard for a new constitution, even in the face of violent government crackdowns as well as state-led attempts to co-opt and hollow out their demands. The popular agitation came to fruition in August 2010 when the current constitution was finally promulgated.

Yet the colonial state did not just fade away. Its more egregious aspects were simply renamed and allowed to hide in plain sight.

The hated provincial administrators became county commissioners; the police, though nominally independent, still remained "a citizen containment squad", as an official report into police reforms had labelled them.

Under Kenyatta, the state retained its authoritarian character but with a fresh, likable face.

Its violence, however, was never far below the surface, as was witnessed in the aftermath of its bungled responses to extremist attacks such as the Westgate Mall in Nairobi in September 2013, when the government scapegoated entire communities to cover up its failures. And, more recently, in the brutal crackdown on people protesting the two elections in which nearly 70 people have died.

The Supreme Court annulment of the August poll came as a real shock to a political and economic elite who had assumed the ballot would be a coronation of their chosen candidate. It was the first real attempt to use the 2010 constitution to challenge their power and status as, effectively, owners of the state.

The response was quick and effective: legislative changes to virtually make it impossible for the court to nullify another election, threats to the judges, and a dubious re-run poll to sanitise what the court had impugned. It has also included Kenyatta's supporters extolling the benefits of a "benevolent dictator".

It is within the context of this historically frustrated effort to bring the colonial state to heel that we must locate the current political impasse. It must not be made out to be about the Luo versus the Kikuyu (although there is an aspect of that), or Kenyatta versus Odinga (although that matters too), or election winners versus election losers (a much less convincing argument).

The real question is whether the wenyenchi (the owners of the nation) will give up their control of the state to the wananchi (the people of the nation); whether they will allow the constitution to dismantle and remake the colonial state into one that works for all Kenyans.

While history may not offer much encouragement, the low turnout (even the highest estimates come in at under 40 percent) for the repeat election suggest there is broad agreement on the need for elections to adhere to constitutional standards of being free, fair, simple, verifiable, transparent, and credible.

The politicians are out of touch with the people. Their brinksmanship demonstrates that they are yet to learn the lessons of the 1960s and that they can't be trusted not to repeat the same mistakes their fathers' made.

Which leads us to the question of what should happen now. There is undoubtedly a need to resolve the immediate political crisis and generate consensus on how to address the longer-term issues. Proposed talks between Kenyatta and Odinga would be critical to this but, as noted above, can't be left solely to them.

The involvement of civil society, the media, and the religious establishment - both as mediators and participants in their own right - would help lay a framework that isn't solely dictated by the interests of the two protagonists.

The goal should be to establish a roadmap to a resolution of the crisis, including an agreed forum for a comprehensive national dialogue to address not just the immediate issues but, more importantly, to deal with the unfinished business of reforming the colonial state and addressing its legacy of abuse, marginalisation, and impoverishment.

Kenya faces much more than an electoral crisis. For over half a century, contestation over who controls the state has been allowed to take precedence over the need to reform that state so it works for not just a few, but for all its citizens. That must now change.

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